If they can Make us Buy Car Insurance, they can Make us Buy Health Insurance

Or so they say. But not everyone has to buy car insurance. If you don’t own a car, you don’t have to buy it. Only car owners have to buy car insurance. Not because it’s for their own good. But because a car is a 2,000 pound weapon. That insurance is to protect those people they may injure by driving their car recklessly. Or in the event of an accident.

People who would rather spend their money on something other than a car don’t have to buy car insurance. Because they can’t hurt anyone with a car if they’re not driving a car. They have a choice. But people who’d rather spend their money on something other than health insurance have to buy it under Obamacare. They have no choice. Trying to compare car insurance and health insurance is comparing apples to oranges. They’re not the same thing.

This mandate that forces people to buy something has been very controversial in the health care debate. Some say it is unconstitutional. Like Judge Roger Vinson of the U.S. District Court for the Northern District of Florida (see Obamacare In Serious Condition by Brian Darling on 2/2/2011 on Heritage’s The Foundry).

The judicial branch of the federal government is having their say and two federal courts have concluded that the individual mandate within ObamaCare is unconstitutional. Judge Roger Vinson of the U.S. District Court for the Northern District of Florida struck down ObamaCare because of the individual mandate yesterday.

Interestingly, Judge Vinson references the event that put us permanently down the road to independence. The Boston Tea Party.

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be ‘difficult to perceive any limitation on federal power’ and we would have a Constitution in name only.

This is a strong argument. No matter how you spin the mandate. Or tax. Depending on what the administration is currently calling it.

The Lack of a Severability Clause may Lower the Bar to Repeal Obamacare

The court ruling causes a bit of a sticky wicket for the Obama administration. You see, without the mandate Obamacare just won’t work. When you give people more stuff someone has to pay for that stuff. And that someone is all of us. Via the mandate (plus new taxes and the gutting of Medicare, but that’s another story). The mandate is an inseparable part of Obamacare. Without it there would be no Obamacare.

Because of this they failed to include a severability clause in Obamacare. That’s the clause you often see that says if any part of a law or contract proved to be illegal the rest of the law or contract shall still be enforced. Without a severability clause, though, this is not the case. Which means if any part of a law or contract proves to be illegal, the entire law or contract shall be deemed illegal. And this is why Judge Vinson has ruled Obamacare null and void in its entirety (see Obamacare Cannot Be Implemented Without a Court Stay by Wesley J. Smith posted 2/1/2011 on First Things).

That means that under the ruling, the law is void and cannot be implemented from this point forward. The Administration’s legal remedy is to seek a stay of the ruling pending appeal. It cannot just defy a federal court ruling. If it tries, the plaintiffs should go to court for the injunction and/or seek an order of contempt against the administration. Pretending that the ruling doesn’t change anything when it unequivocally does, would be both a petulant and extra legal approach to governance.

Obamacare won’t go away without a fight. Or a trip to the U.S. Supreme Court. Despite the fact that it is unconstitutional. That we can’t afford it. And that a majority of those polled want it repealed. Interestingly, too, this is happening at the same time the European Union is desperately trying to keep Greece from defaulting on her debt. And why is Greece flirting with bankruptcy? Because of Obamacare-like government spending.

Based on all of this the really fascinating thing is not that we’re trying to repeal Obamacare. It’s that we haven’t repealed it yet.